Jagdish vs State

Bhanwar Singh, J.—Both these appeals having arisen out of the common judgment dated 771997, passed by IV Additional Sessions Judge, Raebareli, are taken together for disposal. The appellants of these appeals, namely, Jagdish and Smt. Rajpata are husband and wife, both residing in village Pandwan Ka Purwa, P.S. Deeh, District Raebareli. They were convicted under Sections 302 and 201, IPC read with Section 34, IPC and sentenced to undergo life imprisonment and two years rigorous imprisonment respectively. Fine was also imposed under both the counts whereas a fine of Rs. 2000 each was slapped under Section 302, IPC, or nominal fine of Rs. 500 had been levied under Section 201, IPC. In default of payment of fine, combined rigorous imprisonment for one year was awarded to the accused appellants.

In short, the facts giving rise to these appeals may be narrated as below:

The complainant Smt. Lakhu, wife of Radhey Shyam deceased lodged a report on 19101995 at 7 p.m.with the police of P. S. Deeh, district Raebareli with the allegations that a few days before the occurrence she had gone to her paternal house. On her return on 19101995 to her matrimonial home in village Khetaudhan, she found her husband Radhey Shyam not available at her house. She searched for him in village and enquired his whereabouts from the villagers. She then asked from the accused appellants Jagdish and Rajpata but they made one excuse or the other and did not disclose anything about Radhey Shyam. From the disclosures and utterances of these two accused, Smt. Lakhu suspected something fishy in the bottom and, therefore, she complained about their abnormal behaviour to villagers Babban Pasi, Sankatha Prasad and Sarvesh Kumar. All these persons interrogated the two appellants and on being concerned. Jagdish confessed that he and his wife had killed Radhey Shyam as he was having illicit relations with Smt. Rajpata. They also admitted that they had buried the deadbody of Radhey Shyam in the Kothari of their dilapidated house of village Khetaudhan. Smt. Lakhu got a report drafted by village Pradhan and accompanied with some villagers went to the police station and submitted her report. The police registered a case under Section 302/201, IPC. The Station Officer of Deeh police station, namely, Fakhar Saeed Jafri had taken for himself the task of investigation and immediately had, on wireless set informed, his higher authorities including the SubDivisional Magistrate of Salon SubDivision and requested him to reach the village Khetaudhan. Thereafter he proceeded to the aforesaid village and on his way, arrested the accused Jagdish and Smt. Rajpata from Veer ganj market. During their interrogation, both the accused confessed to their crime of having killed Radhey Shyam. Accused Jagdish disclosed that Radhey Shyam was having illicit relationship with his wife Smt. Rajpata. He, therefore, prepared a plan to eliminate the deceased. As per their plan, Rajpata as a bail went to the house of Radhey Shyam on the night of October 16,1995 and brought him with her to their house. Soon after his arrival there, the accused executed their plan and Smt. Rajpataslit Radhey Shyam''s throat by causing a knife injury around his neck. The accused then buried his deadbody in a pit dug by them in their dilapidated house. The Investigating officer took both the accused to the site where the deadbody was lying buried and in presence of the villagers as also the SubDivisional Magistrate Salon who had arrived there by then, got the deceased exhumed. Siteplan Ext. Ka3 was prepared accordingly. The recovery memo (Ext. Ka4 was also prepared by the Investigating officer at the instance of the SubDivisional Magistrate. Thereafter, Jagdish who was in police custody, expressed his willingness to hand over to the police the knife by which Radhey Shyam was killed. The Investigating officer and other police personnel alongwith some villagers accompanied Jagdish to the latter''s house, from where he had brought out knife, material Ext. 1. Siteplan Ext. Ka5 was prepared by the Investigating Officer. Inquest report Ext. Ka10 was also prepared by the Investigating Officer. The body was then sent for autopsy whereas the accused were lodged in the lockun. .After interrogating all the relevant witnesses of this case, the Investigating Officer submitted the chargesheet Ext. Ka7 against the accused.

In support of its case, the prosecution examined seven witnesses. PW1 is Smt. Lakhu, the widow of the deceased and witness of the recovery of the deadbody of her husband at the instance of both the accused. She also stated that the accused on trial had confessed to their guilt of having eliminated her husband PW2 Sarvesh Kumar is also a witness of the recovery of the deadbody at the instance of the accused and he also proved recovery of knife at the instance of accused Jagdish. PW3 Sankatha Prasad, a resident of Khetaudhan village testified that on one night at 11 p.m. about a year before his testimony was recorded, he saw Radhey Shyam, Jagdish and Rajpata chatting together at the entry gate of the house of Radhey Shyam. Thereafter Radhey Shyam was reported to be missing and remained untraceable. When Radhey Shyam''s wife Smt. Lakhu came back from her parents house and asked the accused appellants about her husband in the presence of the villagers, they disclosed that they had killed him and buried in their dilapidated house. The matter was then reported to the police on whose arrival in the village, the deadbody of the deceased was recovered at the instance of the accused. PW4 Dr. Umesh Chandra Sharma conducted the postmortem of the deceased and prepared postmortem report Ext. Ka12.

PW5 Fakhar Saeed Jafri is the Investigating Officer of this case. He deposed before the trial Court that the accused on being apprehended by him confessed to their guilt and it was on their pointing out that the deadbody of Radhey Shyam was recovered in the presence of SubDivisional Magistrate, Salon and many villagers. He disclosed further that a knife was also recovered from the residential house of Jagdish on his pointing out. The investigating Officer proved recovery memo of knife Ext. Ka5, siteplans Exts. Ka4 and 7, recovery memo of deadbody Ext. Ka4 and chargesheet Ext. Ka7. PW6 Sri Akhilesh Kumar Ojha, SubDivisional Magistrate, Salon proved recovery memo Ext. Ka4. PW7 Head Constable Rampal Singh proved Smt. Lakhu''s report Ext. Ka6.

The defence version was that of denial. Both the accused pleaded not guilty and stated that they had been falsely implicated in this case on account of the rivalry with the villagers including Smt. Lakhu. The deceased''s aunt Sundara and her son had stolen away Dhannis of their village house (wooden logs used in villages for construction of roofs) which was virtually a Khandahar as none was living there. Since this house had been abandoned long before, its roofs and walls had collapsed anybody could have access to it. Smt. Lakhu desired to purchase that house but the accused refused to oblige her. In this background, the accused were falsely implicated by Radhey Shyam''s widow.

No evidence oral or documentary was relied upon.

On having analysed the evidence of the prosecution witnesses, the learned trial Court recorded a verdict of the accused being guilty under Sections 302 and 201, IPC read with Section 34, IPC and accordingly convicted and sentenced them as disclosed earlier.

Feeling aggrieved with the judgment of conviction and sentence, the accused have preferred these two appeals.

We have heard the learned Counsel for the appellants and the learned Additional Government Advocate and carefully scrutinised the record.

It is noteworthy that this is a case of circumstantial evidence coupled with the alleged admission of guilt by the accused. The circumstantial evidence comprises of the accused and the deceased having been last seen together by PW3 Sankatha Prasad and the recovery of the deadbody and the knife by which Radhey Shyam was killed on the pointing out of the accused. So far as the admission of guilt is concerned, it may be observed that such a confessional statement either made to the police or extracted under coercion does not carry any legal sanctity. Section 24 of the Evidence Act postulates that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by an inducement, threat or promise, having reference to the charge against the accused person. Further Section 25 of the Evidence Act clearly indicates that no confession made to a police officer, shall be proved as against a person accused of any offence. In this context, it is significant to note that Smt. Lakhu during her crossexamination before the trial Court stated that she had by means of her imagination assessed that Jagdish and his wife had killed her husband. She clarified further that nobody conveyed to her that her husband was killed by Jagdish and his wife. The report she had carried to the police, as was deposed further by Smt. Lakhu, had been drafted by the village Pradhan, not on her dictation. Further she categorically admitted in her evidence that the Police Inspector had arrested the two accused from their house and carried them away to the house of village Pradhan where a beating was given to both of them and it was only after this that the deadbody of her husband was recovered. On the point of recovery as well, there is major inconsistency and it is that according to the statement of Smt. Lakhu, the deadbody was exhumed at 11 in the night in the presence of Sankatha Prasad, Gangadin, Chhangu and Hirubhai villagers while the Investigating Officer as also other witnesses of recovery have revealed that the recovery was made at 8 p.m. The relevant point at this stage, therefore, is that the confessional statements made to village Pradhan. Smt. Lakhu, Sarvesh Kumar and PW3 Sankatha Prasad are not admissible in evidence in view of the provisions of Sections 24 and 25 of the Indian Evidence Act. It is evidence from a perusal of the testimony of Smt. Lakhu that the alleged admissions of the two accused were extracted under coercion. We, therefore, reject the prosecution case of the two accused appellants having made confessional guilt.

The evidence of PW2 Sarvesh Kumar and PW3 Sankatha Prasad is not free from doubt. Sarvesh Kumar asserted that he had seen Radhey Shyam and Rajpata in love making a month before the occurrence. What is relevant to note is that after this unsocial event of the two persons being in extramarital relationship, Sarvesh Kumar was expected in natural course to have disclosed this fact either to Jagdish but he had not done so. Not only this but he also did not convey this to any villager or the family members of the two spouses. We are, therefore, not inclined to accept this version of Sarvesh Kumar.

PW3 Sankatha Prasad claimed to have seen at 11 p.m. during a night the deceased talking with two accused appellants and thereafter the former was reported to be missing. He did not disclose this fact to Smt. Lakhu on her return from her parents house. Both these circumstantial events thus being not free from suspicion are not acceptable.

Now remains the important feature of the prosecution story on the basis of which it was alleged that there was a complicity between the commission of the crime and the accused. As recited earlier, the accused were stated to have confessed to their guilt and they also disclosed that they could lead to recovery of the deadbody of the deceased Radhey Shyam and the knife by which they had killed him. So far as the recovery of knife is concerned, there are major inconsistencies on that account in different versions brought before the trial Court by the witnesses. Smt. Lakhu stated that except the deadbody of her husband, no incriminating article was recovered in her presence. PW2 Sarvesh Kumar asserted that the knife was recovered at the instance of accused Jagdish from an enclosure of his house known as Kothari (cell). During his crossexamination. Sankatha Prasad PW3 stated that knife had been recovered alongwith the deadbody of the deceased. Contrary to this, he gave out that the knife was recovered from the room of Jagdish''s house. He further revised his statement and added that as a matter of fact knife was found embedded in a shed. When Sankatha Prasad was asked to disclose as to which of the two above conflicting statements was correct, he on having recollected his memory stated that his statement to the effect that the knife was recovered alongwith the deadbody was correct. All these three versions brought forward by this witness are in conflict with the recovery memo Ext. Ka5 which appears to indicate that Jagdish had taken out the knife in question from inside a canister lying in his house. In order to wriggle out of the conflicting versions, the Investigating Officer disclosed that Sankatha Prasad was not present at the time of recovery of knife although admittedly Sarvesh Kumar was present. The name of Sarvesh Kumar appears on the recovery memo Ext. Ka5 but as stated earlier and contrary to the recital of the recovery memo, Sarvesh Kumar testified that Jagdish had taken the knife out of canister lying in the Kothari. The index of siteplan Ext. Ka4 reveals the courtyard as the place from where the knife was collected. All these conflicting stories regarding recovery of knife lead us to the conclusion that the prosecution case on this point is full of doubt, replete inconsistencies with disturbing features all around.

Now the main prosecution version about the deadbody recovered on the pointing out of the accused appellants will have to be scrutinised. It is important to note that the statement of Smt. Lakhu with her recitals in her report to the effect that the accused had killed her husband was imaginary, has demolished the edifice of the prosecution story. A perusal of the report Ext. Ka4 would show that initially the accused made one excuse or the other when they were asked the whereabouts of Radhey Shyam but when the villagers cornered the appellants to disclose the truth, it was then that they revealed the fact of their having killed and buried. Radhey Shyam. Smt. Lakhu disowned this version laid in the FIR and stated before the trial Court that the Village Pradhan had scribed the report without consulting her. She added further fhat it was a fact that she carried and submitted the said report drafted by village Pradhan but the same was not drawn on her dictation or even with her knowledge. Not only this, she categorically stated that Jagdish and his wife had not conveyed to her or any villager that they had killed Radhey Shyam. It was only her assessment based on the disclosures made to her by the villagers about the complicity of the accused in the commission of the crime. It is obvious and evident that the FIR version on the face of her statement in Court withers away to the winds and further her admission that two accused were given a beating by the Police Inspector in the house of village Pradhan clearly proves beyond doubt that the accused persons were frightened of villagers'' torturing methods in this case on account of village rivalry and the police also become a party to such coercive measures of investigation. Further her testimony that the deceased had extramarital relationship with Smt. Rajpata also docs not seem to be worthy of credit as this major event touching the very sentiments of the complainant was kepi concealed by her for all times until her husband was killed. As stated by her, she deserted her husband many a times being annoyed with him on account of the latter''s illicit relationship with Rajpata and went away from her marital home to stay with her parents, she was staying with her parents for the last about one year but despite this longlasting slay she did not disclose either to her parents or to any family member or even any villager that her husband was leading an immoral life. This was an abnormal feature and out of this abnormality, it can well be deduced that it was a ''got up story'' manufactured with a view to attribute motive to the accused, mainly Jagdish. It can, therefore, reasonably be held that the evidence of Smt. Lakhu is totally unworthy of credit and hence liable to be rejected.

The evidence of Sarvesh Kumar also gives rise to a suspicion on the genuineness of the prosecution case. He stated that Jagdish was tied by a string with the Neem tree standing in front of his house. In his examinationinchief he stated that the Station officer of Deeh police station and the SubDivisional Magistrate Salon arrived at the village and it was then that Jagdish, being in custody, disclosed that Radhey Shyam was killed by him and his wife and his deadbody was lying buried in the Kothari of his house. Quite contrary to this, Sarvesh Kumar testified in his crossexamination that Jagdish was tied to a Neem tree when SubDivisional Magistrate came at 8 p.m. Jagdish and Rajpata both remained tied with the Neem tree even after arrival of the SubDivisional Magistrate and during digging operation of the deadbody. His statement not only proves that any such disclosure by the accused was certainly under coercion but it also shows that the recovery was not as a matter of fact on the voluntary pointing out of the accused. PW3 Sankatha Prasad had also corroborated that it was as a sequel to the assault by villagers that Jagdish disclosed about Radhey Shyam being killed and buried in the Kothari of his abandoned house. It was also further confirmed by this witness that Jagdish was tied to a Neem tree and he remained tied there from 4p.m. to 89 p.m. i.e. until when the Police Inspector and the SubDivisional Magistrate came. He then stated that Jagdish afore and not Rajpata started about the Radhey Shyam being buried in the Kolhari of the house. In this regard, it is also very important to find out that the inquest report is absolutely silent about the deadbody of Radhey Shyam having been recovered on the pointing out of the accused appellants. The Station Officer admitted this fact and explained that he did not consider it relevant to mention it in the inquest report. The explanation does not seem to be satisfactory because the victim of discovery of the deadbody on the pointing out of the accused was an important factor and had there been some truth in this version, it would have found a reference in the inquest report. It thus, appears that the preparation of the inquest report preceded the recovery memo Ext. Ka5. The evidence of the SubDivisional Magistrate Salon Sri Akhilesh Kumar Ojha, PW6 failed to inspire confidence that the discovery of the deadbody in his presence was in consequence of the disclosure made by the accused. When he was asked in this regard, he revealed that on the pointing out of the Station Officer he got the digging started. As the statement of the SubDivisional Magistrate was vague, he was put a specific question during the course of cross examination and the question was to the effect as to whether the accused had themselves disclosed to him that the deadbody was buried at a particular place. Again a vague answer came out of his statement when he said that it was in his presence that the Station Officer Deeh was conveyed about the place where the deadbody had been buried. He simply heard it. This kind of evidence was not expected to have come out of a responsible officer and certainly on the basis of such testimony coupled with the inconsistency in regard to time of digging out the deadbody as referred to earlier wear inclined to hold that even the evidence of the SubDivisional Magistrate Sri Akhilesh Kumar Ojha was not worth being relied upon.

It may be mentioned further that the discovery of the deadbody from a deserted and dilapidated house of the accused persons does not lead to any inference pointing out to the conclusion of there being some complicity of the accused with the crime. It finds corroboration from the evidence of Smt. Lakhu that the place from where the deadbody was recovered was an abandoned and dilapidated house. She conceded further that as the house had fallen down, any person could have an easy and free access to it. She also admitted that Jagdish and his wife were living in their village, namely, Pandwan Ka Purwa. She also admitted that her aunt Budhace had taken away the wooden logs of the fallen roof of Jagdish''s house. On the face of these admissions it can reasonably he held and recorded that the dilapidated house was not in possession of the accused at the time of the deadbody being recovered. As it was an abandoned house having no roof or walls at all anybody could have committed the crime there. Therefore, we are inclined to hold that the recovery of deadbody from the said deserted and dilapidated house of the accused which was not in their control and possession does not lead to any inference, indicating the accused''s complicity in the commission of the crime resulting in death of Radhcy Shyam or discovery of the dead body.

In view of all what has been discussed above, we are of the decisive opinion that the prosecution failed to establish the guilt of the accused appellants. As a consequence, we hold further that the verdict of the learned trial Court holding the appellants guilty under Sections 302 and 201, IPC read with Section 34, IPC and convicting and sentencing them to various terms of imprisonment and levying fine is not sustainable.

Accordingly both the appeals are allowed and the judgment in appeals is set aside. The accused appellants Jagdish and Smt. Rajpata are acquitted of the charges levelled against them. They are in jail. They shall be released forthwith unless wanted in any other case. Material exhibits shall be disposed of in accordance with law. Appeal allowed